Opinion
DOCKET NO. A-5799-08T4
01-20-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NEAL K. GRANT, a/k/a NEIL GRANT, RUBIN AUSTIN, JARMER K. GRANT, JAMAR GRANT, KAREEM GRANT, KYNEIL GRANT, LEVI GRANT, MALIK GRANT, WALIK GRANT, KAREEM W. KYNELL, and DAYVON AL KAREEN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Charles H. Landesman, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 00-02-0367 and 00-02-0368. Joseph E. Krakora, Public Defender, attorney for appellant (Charles H. Landesman, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by ROTHSTADT, J.A.D.
Defendant Neal Grant appeals from the Law Division's January 9, 2009 order denying his petition for post-conviction relief (PCR), filed in 2006. The PCR judge denied the petition without providing a written or oral statement of reasons. Defendant appealed and, in 2010, we remanded the matter, instructing the PCR judge to provide a statement of reasons for his decision. On April 10, 2010, upon learning the original PCR judge was on military leave, we ordered the Law Division to reassign defendant's petition to a new judge for de novo review. However, the matter was not reviewed de novo; rather, in 2014, the Law Division attempted to satisfy our 2010 order by filing with us an unsigned opinion found in the original PCR judge's files, dated "2009."
Defendant has been incorrectly designated as Neil Grant throughout the record and has an extensive list of aliases. He is also known as Rubin Austin, Jarmer K. Grant, Jamar Grant, Kareem Grant, Kyneil Grant, Levi Grant, Malik Grant, Walik Grant, Kareem W. Kynell, and Dayvon Al Kareen.
On February 26, 2001, following a bifurcated trial, a jury found defendant guilty of armed robbery, N.J.S.A. 2C:15-1; aggravated assault, N.J.S.A. 2C:12-1(b)(1); unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and possession of a weapon by "certain persons,", N.J.S.A. 2C:39-7(b). Defendant fled to Georgia before the verdicts were returned and was not sentenced until January 23, 2004, after he was arrested and extradited back to New Jersey.
After merging the robbery, assault, unlawful possession, and unlawful purpose convictions, the court sentenced defendant to a twentyyear term of incarceration, subject to the No Early Release Act (NERA), N.J.S.A. 2C:437.2, with five years of parole supervision, and to a concurrent tenyear term for possession by a felon, subject to a fiveyear period of parole ineligibility.
Defendant appealed his convictions and sentences. We reversed his conviction for weapons possession, but affirmed the remaining convictions and his sentence. State v. Grant, No. A629703 (App. Div. May 31, 2005), rev'd in part, certif. denied in part, 185 N.J. 258 (2005). The Court granted certification, limited to the issue of defendant's sentence, and remanded the matter for resentencing in light of its thenrecent decision in State v. Natale, 184 N.J. 458 (2005). State v. Grant, 185 N.J. 258 (2005). On August 5, 2010, another judge resentenced defendant on the remaining convictions and imposed the same twentyyear custodial sentence, subject to NERA, and five years of parole supervision. We affirmed his sentence but remanded for amendment of the judgment of conviction to reflect an additional fiftysix days of jail credit, and the Court denied certification. State v. Grant, No. A123210 (App. Div. July 26, 2013), certif. denied, 217 N.J. 296 (2014).
On appeal, defendant argues the matter should be remanded to the Law Division for de novo review pursuant to this court's 2010 order. He also advances several arguments in support of his claim that he was denied the effective assistance of counsel at trial. Specifically, defendant argues:
POINT I:
THE TRIAL COURT ERRED BY DECIDING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ON THE PAPERS. THE MATTER SHOULD BE REMANDED TO THE TRIAL COURT FOR ORAL ARGUMENT AND IF NECESSARY AN EVIDENTIARY HEARING.
POINT II:
THIS MATTER SHOULD BE REMANDED TO THE TRIAL COURT TO REVIEW DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF DE NOVO AND TO DETERMINE WHETHER THE PETITION SHOULD BE GRANTED OR DENIED.
POINT III:
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT HIS TRIAL.
. . . .
B. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS ATTORNEY DID NOT REQUEST AN ACCOMPLICE LIABILITY INSTRUCTION BEFORE SUMMATIONS.
C. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL ATTORNEY DID NOT OBJECT TO THE COURT'S CHARGE ON THE CRIME OF FIRST DEGREE ROBBERY.
D. THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN THAT TRIAL COUNSEL FAILED TO FULLY INFORM THE DEFENDANT OF THE CONSEQUENCES OF HIS DECISION TO TESTIFY ON HIS OWN BEHALF.
E. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN THAT TRIAL COUNSEL FAILED TO REQUEST THE MODEL JURY CHARGE ON PRIOR CONTRADICTORY STATEMENTS OF WITNESSES.
The State contends we should affirm because as defendant's petition was properly denied, the filing of the "2009" opinion satisfied our order, and defendant failed to establish his trial counsel was ineffective. As to the filing of the unsigned opinion, the State specifically argues that "[d]efendant received exactly what he was entitled to - a statement of reasons from [the original PCR judge] explaining why he denied defendant's petition." We disagree.
We reject the State's argument that the filing of the "2009" unsigned and undated opinion satisfied our directive. Our Rules require otherwise. See R. 3:22-11 (requiring a trial court to make its final determination and "state separately its findings of fact and conclusions of law" within sixty days of "the filing of the last amended petition or answer"); R. 3:29 (requiring a trial court to provide a statement of reasons for its disposition of a criminal matter); R. 1:7-4(a) (requiring the court to issue "an opinion or memorandum decision, either written or oral, find[ing] the facts and stat[ing] its conclusions of law" when required by Rule 3:29, and "thereupon enter or direct the entry of the appropriate judgment"); see also Ducey v. Ducey, 424 N.J. Super. 68, 74 (App. Div. 2012) (concluding "the trial court deviated from its factfinding obligation, as set forth in Rule 1:7-4(a), by issuing an opinion three months following the entry of the [final judgment]").
Under the strange circumstances presented in this case, we agree with defendant's contention that the January 9, 2009 denial of his petition must be vacated, and the matter remanded for consideration in accordance with our 2010 order by a different judge who has had no previous involvement with this case. The assigned judge shall conduct a de novo review, scheduling whatever hearings he or she may deem appropriate, and enter an appropriate order supported by a contemporaneous statement of reasons, written or oral, as Rule 3:22-11 demands.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION